What to do if you are served a Summons from the Royal Commission into Institutional Responses to Child Sexual Abuse

Ian Fraser CSO A/Special Counsel

Establishment of the Royal Commission

The Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse ("the Royal Commission") was established in January 2013, pursuant to Commonwealth letters patent. State Royal Commissions with identical terms of reference were subsequently established pursuant to letters in each State. (NSW letters patent were issued on 25 January 2013.)

The terms of reference, which state that "all children deserve a safe and happy childhood" and should be "protected from all forms of sexual abuse", covers child sexual abuse in both public and private institutions. The family as an institution is specifically excluded.

The Commission is seeking to examine all forms of response to such allegations, including:

mandatory reporting;

police and other investigations into allegations;

the screening of those working with children;

the handling of allegations of child sexual abuse against employees;

redress for victims;

impact on victims;

causes of abuse;

prosecutorial decision making;

civil litigation in respect of claims relating to child sexual abuse;

the criminal justice system; and

the policies and practices of different institutions.

Current status

According to its website the Royal Commission has held over 1500 private sessions/hearings with those who state they were the victims of child sexual abuse in an institutional context (there are apparently another 2000 people waiting to tell their story to the Royal Commission). 590 Notices to Produce have been issued to the institutions and agencies.

The Royal Commission is holding public hearings with 12 having being completed so far. The thirteenth one is currently in progress (in Canberra). The Royal Commission has issued one case study report, with further reports anticipated in respect of each public hearing. The hearings have covered a wide range of differing institutions, contexts and responses in a number of States.

The Royal Commission has sought the engagement and views of the various interested parties and institutions by way of Issues Papers covering subjects such as:

the working with children check;

the child safe institutions;

the prevention of sexual abuse in out of home care;

civil litigation; and

redress schemes.

Roundtables on various subjects are also expected to be held by the Royal Commission, at which representatives of Government and other institutions are invited to discuss matters relating to specific topic areas. Two have been held to date, which considered issues relating to preventing child sexual abuse in out of home care and working with children checks.

The Royal Commission is also undertaking a research program which looks at various issues, including the criminal justice system, prevalence of abuse, causes, prevention and reporting and responding to allegations.

The Royal Commission is due to hand down/deliver an interim report by the end of June 2014 and its final report is currently due by 31 December 2015.

Involvement of the State of NSW

The State of NSW has had significant involvement in the Royal Commission to date. The State is taking a whole of government approach which is coordinated through the Department of Premier and Cabinet. The Crown Solicitor has been instructed to represent the interests of the State before the Royal Commission. So far the State of NSW has appeared in six of the thirteen public hearings.

One of those hearings concerned a paedophile scout master who later became the head of an Aboriginal Children's Corporation, the second with a defendant who was employed by the YMCA, two case studies in respect of the Salvation Army, one case study regarding the Marist Brothers, and one into a particular State institution, Parramatta Girls' Home.

A whole of government response is intended to ensure that there is a consistent and coherent position put forward on behalf of the State, and that the State is in the best position to assist the Commission.

Notices to Produce/Summonses

Royal Commissions have been established at both Commonwealth and State level under the Royal Commissions Act 1902 (Cth)and in NSW the Royal Commissions Act 1923 (NSW).The Royal Commission has the power under each piece of legislation to require the production of documents. The powers of compulsion differ slightly, most relevantly in that the Commonwealth legislation provides that legal professional privilege may be claimed. However, under the Royal Commissions Act 1923 (NSW), privilege is abrogated pursuant to s. 17.

It is important that agencies are aware of the obligations to preserve documents. It is a criminal offence to destroy documents knowing they will be of relevance to the Royal Commission (s. 23) (there are also similar offence provisions under the NSW legislation).

What to do if a Summons is received

It is important that the appropriate people are advised regarding any Summons, as the Summons and any documents produced will inform the position of the State.

The timeframe provided for responding to the Summons may be very short. Therefore any issues regarding the time frame should be raised with the relevant departmental contact and the Department of Premier and Cabinet as soon as possible. If there are any issues regarding the clarity of the Summons these should also be raised. If after complying with the Summons further information/material is required (that was caught by the Summons) there is a continuing obligation to provide that material.

It is vital that what has been produced to the Royal Commission is able to be identified. Therefore agencies should keep a copy of what is produced, and ensure a copy is provided to the Crown Solicitor. This can be in electronic or hard copy form.